Can a lawyer suing a former client to collect an unpaid fee use confidential information learned during the representation?

Plain-English summary

The inquiry described an attorney who had exhausted all reasonable efforts to collect a reasonable fee from his client, so that suit was necessary if the fee was to be collected. During the representation the attorney had gained confidential information, otherwise obtainable, about the client's assets, and those assets had to be reached if the fee was to be collected. The question was whether the attorney could ethically pursue those assets of his client.

The Committee said the question had been squarely answered in the affirmative by ABA Opinion 250 (June 1943), which it unanimously approved. It noted that fee controversies should be avoided where reasonably possible, but that an attorney is entitled to reasonable compensation and, if all reasonable collection efforts are fruitless, it is not unethical to sue the client as a last resort.

On the confidentiality point, the Committee acknowledged that the protection of a client's confidences is expressly covered by Texas Canon 34 and ABA Canon 37 and that an attorney may not use such confidences to his own private advantage. It held, however, that there are well-recognized exceptions, and that a client should not be permitted to use the rule to defeat the just rights of the attorney arising out of the attorney-client relationship. In the Committee's words, the policy of protecting a client's confidence does not require that the attorney be made a victim of it; in pursuing the client's hidden assets the attorney is not using the confidence for private gain but is merely protecting his own just rights. The vote was 8-0.

Currency note

This opinion was issued in 1968, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sue a client to collect an unpaid fee?

A: Yes. The Committee said fee controversies should be avoided where reasonably possible, but a lawyer is entitled to reasonable compensation and may sue the client as a last resort once all reasonable collection efforts have failed.

Q: Can the lawyer use confidential information about the client's assets to collect the fee?

A: The Committee said yes, where clearly necessary to protect the lawyer's rights, because the confidentiality rule has well-recognized exceptions and a client may not use it to defeat the lawyer's just rights from the relationship.

Q: Did the Committee treat this as using a client's confidences for personal gain?

A: No. It reasoned that in pursuing the client's hidden assets to collect a fee, the lawyer is not using the confidence for private gain but is merely protecting his own just rights.

Background and rules framework

The opinion interprets former Texas Canon 34 and ABA Canon 37 (preservation of a client's confidences), with Canon 13 referenced on the fee. The modern analogs are ABA Model Rule 1.6, including the exception that permits disclosure to establish a claim or defense in a fee dispute, and Model Rule 1.5 (fees).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality; exception to establish a fee claim), as the modern analog
• MR 1.5 (fees), as the modern analog
• Texas Canons 13 and 34; ABA Canons 14 and 37 (former canons)

Other opinions cited:

• ABA Opinion 250 (June 1943) (suing a client for a fee and use of confidences)

See also

• TX Ethics Op. 353: Confidentiality of a Client's Confided Past Crime
• TX Ethics Op. 348: Appointed Counsel Taking a Partial Fee From Family and County

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-341/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_341.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

An attorney has exhausted all reasonable efforts to collect a reasonable fee from his client and suit is necessary if the fee is to be collected. During his representation of the client the attorney has gained confidential information, but otherwise obtainable, concerning assets of the client and those assets must be reached if the fee is to be collected. Under these circumstances may the attorney ethically pursue such assets of his client?

23 Baylor L. Rev. 876 (1972)

SUING A CLIENT FOR FEE - CONFIDENCES OF A CLIENT
When justice requires an attorney to sue a client for his fee it is not unethical for the attorney to use confidential information obtained from the client where clearly necessary to protect his rights.

Canons 13, 34.
ABA Canons 14, 37.

This question has been squarely answered in the affirmative by ABA Opinion 250 (June, 1943) and we unanimously approve.

Controversies with clients concerning fees, of course, should be avoided wherever reasonably possible but an attorney is entitled to receive reasonable compensation for his services and if all reasonable collection efforts are fruitless it is not unethical for an attorney to sue his client as a last resort.

The time-honored legal principle that confidences of a client are to be protected and preserved is expressly covered by Texas Canon 34 and ABA Canon 37 and an attorney may not use such confidences to his own private advantage. However, there are well recognized exceptions to the general rule and the client should not be permitted to take advantage of the rule to defeat just rights of the attorney growing out of the attorney-client relation. The policy of protecting a client's confidence does not require that the attorney be made a victim thereof, and in pursuing his client's hidden assets the attorney is not using his client's confidence for private gain but is merely protecting his own just rights. (8-0.)

Tex. Comm. On Professional Ethics, Op. 341 (1968)